Editorial Note

The jurisdiction of the Court of General Sessions of the Peace in cases of bastardy
originated in its role as a conservator of public morals. The effect of bastardy proceedings,
however, was less to punish the guilty than to provide for the support of the innocent
and save the town from charge; thus they may properly be viewed as a phase of the
court's administrative powers in welfare matters. The jurisdiction was established
by a statute dealing with a number of noncapital offenses, including swearing, drunkenness,
burglary, breach of the peace, forgery, and perjury. The section on bastardy, after
establishing pecuniary and corporal penalties { 320 } for fornication, provided, “And he that is accused by any woman to be the father of
a bastard child, begotten of her body, she continuing constant in such accusation,
being examined upon oath, and put upon the discovery of the truth in the time of her
travail, shall be adjudged the reputed father of such child, notwithstanding his denial,
and stand charged with the maintenance thereof, with the assistance of the mother,
as the justices of the quarter sessions shall order; and give security to perform
the said order, and to save the town or place where such child is born, free from
charge for its maintenance and may be committed to prison until he find sureties for
the same, unless the pleas and proofs made and produced on the behalf of the man accused
and other circumstances be such as the justices shall see reason to judge him innocent
and acquit him thereof, and otherwise dispose of the child.”1

Cases under this Act were a frequent item on the dockets of the Courts of General
Sessions (successors to the quarter sessions), and Adams tried a substantial number
of them.2 They are of interest both for the social problem which they reveal and because of
the procedural steps adopted for its solution.

Jane Dotey, of “Duxborough” (Duxbury) in Plymouth County, gave birth to an illegitimate
child in September 1767. In July she had been examined by Gamaliel Bradford, a Justice
of the Peace, and had made oath that one Manuel Essane was putative father of the
child with which she was then pregnant (Document I). On Bradford's warrant, Essane, a minor apprenticed to Rouse Bourne of Marshfield,
was brought before the Plymouth Court of General Sessions then sitting and was apparently
bound over to abide the event by virtue of another provision of the statute.3 Finally at the December Sessions, Jane appeared, was fined for the crime of fornication,
and again made oath that Essane was responsible for her { 321 } plight. The court adjudged Essane “reputed father of the said child,” and ordered
him to pay maintenance and costs, and to give bond to indemnify the towns of Plymouth,
Duxbury, and Marshfield from charges for the child (Document II).4

On the motion of Adams, who had represented Essane at Sessions, the Superior Court
at its March 1768 Suffolk Term ordered a writ of certiorari to issue returnable at
Plymouth in May.5 Adams filed an assignment of errors (Document III), in which he attacked the Sessions proceedings on six grounds. The first three errors
assigned alleged the absence from the record of any findings of compliance with the
statutory requirements of accusation and examination before and during delivery. The
other assignments were that the order for maintenance was either beyond the court's
jurisdiction, or void for uncertainty; that as a minor Essane could not be ordered
to give bond; and that the portion of the order requiring Essane to indemnify the
three towns was void because there was no finding or evidence as to the child's birthplace,
and because, in any event, only the town in which the birth occurred was liable for
his charges.

When the case was heard at Plymouth in May, the Court quashed the order of Sessions
and filed a memorandum of its reasons, an unusual item, which is printed as Document IV.6 The first reason, the omission of the child's birthplace from the record, was probably
considered “jurisdictional”; that is, the fact omitted was necessary to a valid order,
at least one requiring that indemnity be given to a town.7 In its second reason, that the judgment was based only on the complainant's oath,
the court avoided a direct confrontation of the jurisdictional issues in Adams' first
three assignments of error, stating in effect only that the facts alleged were insufficient,
without saying what particular additional facts would have been necessary.8 The final reason, that the order should have required the father to indemnify only
the town of the child's birthplace, could either be said to go to an excess of jurisdiction
or could be considered the correction of an order inconsistent on its face.9 The presence in the Superior { 322 } | view Court file of Jane Dotey's examination (Document I), and the warrant issued by Justice Bradford on the basis of it, suggest an unsuccessful
attempt to cure some of these errors by material not strictly speaking in “the record.”10

2. Other JA cases in addition to No. 29 and No. 30, include Johnson v. Hunter (Concord Sess. Sept. 1768), and Turner v. Reynolds (Taunton
Sess. Aug. 1769). His minutes for both are in the Adams Papers. See also his diary entry for 29 July 1766: “At Boston. . . . Heard some Cases of
Bastardy in the Sessions. William Douglass was charged by a Dutch girl with being
the father of a Bastard Child born of her Body.” 1 JA, Diary and Autobiography317. This was the case of Susanna Strater, who was presented for and convicted of fornication
at the Suffolk Sessions on 29 July 1766. She then swore that William Douglass of Boston,
a minor, was the father and produced witnesses to the fact. Douglass was ordered to
pay maintenance. Sess. Min. Bk., 29 July 1766. See also Hewet v. Clear, ibid. For some indication of the number of such cases, see Records of the Court of General Sessions of the Peace for the County of Worcester,
Massachusetts, from 1731 to 1737 (Worcester, Mass., ed. F. P. Rice, 1882). As to the state of morality generally,
see Charles Francis Adams, “Some Phases of Sexual Morality and Church Discipline in
Colonial New England,” 6 MHS, Procs. (2d ser.) 477–516 (1890–1891).

3. For the warrant, dated 6 July 1767 and returned to the Sessions on 11 July, see SF 142245. The section of the bastardy statute quoted above, text at note 1, also provided that “every justice of the peace upon his discretion may
bind to the next quarter sessions him that is charged or suspected to have begotten
a bastard child; and if the woman be not then delivered, the sessions may order the
continuance or renewal of his bond, that he may be forthcoming when the child is born.”

4. The order to give bond for all three towns was probably based on Bradford's warrant
of 6 July, which gave as a reason for Essane's apprehension that “the said Child when
Born May be Chargeable to the said Mother, or to the Towns of Plymouth, Duxborough
or Marshfield.” SF 142245.

5. Min. Bk. 86, SCJ Suffolk, March 1768. The writ and notification to Jane Dotey, both dated 8 April
1768, are in SF 142245. They are substantially similar in form to those printed in Brookline v. Roxbury,
No. 27, Docs. V, VII. The penalty for fornication provided by the section of the statute at note 1 above was a fine not to exceed £5, or whipping not to exceed ten stripes, in the
discretion of the Sessions. JA received a fee of “12” (presumably shillings) from one Elisha Ford. JA, Docket, Plymouth Inferior Court, Dec. 1768. Adams Papers.